CHUI KAM SANG v. TAO KEE ENG CO LTD AND ANOTHER

HCPI 986/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 986 OF 2006

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J U D G M E N T

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Introduction

1.  On 27^th December 2003, whilst he was working on a construction site in Tai Wai, the Plaintiff, Mr Chiu Kam Sang, was injured when a wooden plank was dropped from a platform above him and struck him on the back of the neck.

2.  The Plaintiff claims damages for personal injuries from the 1^st Defendant, Tao Kee Engineering Co. Ltd., his employer, and the 2^nd Defendant, Nishimatsu Construction Company Limited, the principal contractor on the site.

3.  The Plaintiff alleges that his injuries were caused by negligence and/or breach of contract on the part of the 1^st Defendant as his employer.  He also alleges in the alternative that the Defendants are both liable for breach of the common duty of care under the Occupiers Liability Ordinance (Cap.314).

The issues in this trial

4.  At the outset of the trial of this action, I was informed by counsel for the parties that various matters had been agreed between them and that, as a result, there were only a limited number of live issues for determination.

5.  The matters agreed by the parties were that:-

(1) Liability on the part of the 1^st and 2^nd Defendants was conceded;

(2) The Plaintiff had already been paid a sum of $398,468 by way of compensation for his injuries; and

(3) Special damages were $30,000.

6.  The live issues were:-

(1) The question of contributory negligence;

(2) The amount of general damages for pain, suffering and loss of amenities;

(3) The amount of pre-trial loss of earnings; and

(4) The amount of post-trial loss of earnings.

The accident

7.  The accident occurred at about 3pm on the day in question.  The Plaintiff, who was employed by the 1^st Defendant as a steel bending and fixing worker, was instructed by his supervisor, Mr Tsang Chun Wah, to fasten a ladder to the lower part of a work platform at the site.  In the meantime, his colleague, Mr Yim Ming Fu, was instructed by Mr Tsang to ascend the work platform to clear unused wooden materials from the platform by handing them down to Mr Tsang on the ground.  The platform consisted of two levels and the second level was about 4 metres above the level of the ground.

8.  According to the Plaintiff’s evidence, he was working at the base of the platform in a squatting position when the accident occurred.  Mr Tsang was standing just behind him and Mr Tao, the proprietor of the 1^st Defendant, was a short distance away behind Mr Tsang.  Mr Tsang was talking to Mr Tao whilst he was receiving the wooden planks being handed down from the top of the wooden platform by Mr Yim.  Mr Tao described the wooden planks as 2” by 4” planks of about 7 feet in length.

9.  The accident occurred when one of the wooden planks Mr Yim was handing down from the top of the wooden platform fell and struck the Plaintiff on the back of his neck, injuring him.

Liability: was the Plaintiff guilty of contributory negligence?

10.  As I have already noted, liability on the part of the 1^st and 2^nd Defendants, who were jointly represented, was conceded.  In his closing submissions, Mr Victor Gidwani, counsel for the Defendants, indicated that the basis on which liability was admitted was that the system of work was unsafe.  The only issue in respect of liability was whether the Plaintiff was guilty of contributory negligence.

11.  The Defendants contended that the Plaintiff was contributorily negligent to the extent of 10%.

12.  It was contended that the Plaintiff was aware of the fact that Mr Yim was handing down the wooden planks to Mr Tsang from the top of the wooden platform and, in working immediately below where he knew this operation was taking place, he did not take care for his own safety.

13.  In cross-examination, the Plaintiff said he knew that Mr Tsang was standing behind him because he could hear him talking and that he was close behind him.  He was aware of Mr Yim and Mr Tsang’s relative positions to him.  He said it did not occur to him that there was anything dangerous in what he was doing and that he was just working according to his supervisor’s instruction.  He said he had followed the standard requirements followed by other workmen at the site in that he was wearing safety shoes and a safety helmet.

14.  The Plaintiff accepted he was not looking out for Mr Yim when he was working at the bottom of the platform but disagreed when it was put to him in cross-examination that he did not look after his own safety by keeping a proper lookout for Mr Yim and what he was doing at the time.  He likened what he did to crossing the road when the light was green.

15.  Mr Gidwani submitted that, in the circumstances, the risk of the wooden plank hitting the Plaintiff was reasonably foreseeable.  The circumstances in question were: the straight forward operation of Mr Yim handing down the wooden planks to Mr Tsang, the physical proximity of the Plaintiff to Mr Yim and Mr Tsang and his knowledge of their presence and what they were doing, and the fact the accident happened during the day time and at a place which was not so noisy that the Plaintiff could not hear Mr Tsang conversing with Mr Tao.  This was not, submitted Mr Gidwani, a case of a sudden collapse of a platform or a sudden loss of balance by a co-worker, nor was it a case of momentary inadvertence or forgetfulness by the Plaintiff.  Thus, it was submitted, the Plaintiff ought to have taken some care for his own safety by keeping a lookout from time to time and he should bear 10% of the blame for the accident.

16.  For his part, Mr Benjamin Chain, counsel for the Plaintiff, referred to Mr Tao’s witness statement in which, when describing the accident on the basis of what Mr Tsang had told him, Mr Tao said, “After holding about two to three pieces of wood passed down to him by Mr Yim, he [Tsang] left the position where he was standing originally so as to help other worker in the Site in need.” 

17.  It seems to me that this evidence indicated that the cause of the accident was the fact that Mr Tsang had moved away from his position at the base of the working platform so that he was unable to take the wooden planks from Mr Yim.  Since there was no eye witness to the accident, it seems to me that the most likely explanation as to how the accident occurred, in the light of the available evidence, is that Mr Yim dropped the wooden plank which struck the Plaintiff in circumstances in which he assumed in ignorance that Mr Tsang was there, and paying sufficient attention, to take it from him as he handed it down.  I so find.

18.  Notwithstanding Mr Gidwani’s submissions that the risk of the wooden plank falling to the ground where the Plaintiff was working was foreseeable, in my judgment, I do not think the Plaintiff was guilty of contributory negligence.  At the time of the accident, he was doing as he had been instructed by Mr Tsang, his supervisor, and in the place where he was instructed to do it.  Mr Tsang himself was participating in the activity which was said to be the danger of which the Plaintiff should have taken care to avoid.  It would appear that the accident was caused or contributed to by Mr Tsang’s lack of care either by his being distracted by talking to Mr Tao or by his abandoning his position at the bottom of the working platform to go and help some other worker.  Had he not done so, it is reasonable to conclude that the wooden plank that struck the Plaintiff would not have fallen but would instead have been safely handed by Mr Yim to Mr Tsang, like the two or three other pieces that had already been handed down.  I do not consider the Plaintiff should be held to blame for his supervisor paying less than full attention to the simple task of receiving the wooden planks from Mr Yim.

19.  I therefore conclude that there was no contributory negligence on the part of the Plaintiff and, accordingly, the Defendants are fully liable for the injuries sustained by him as a result of the accident.

Quantum

20.  The Plaintiff was born on 13 June 1961 and was aged 42 at the date of the accident and 47 at the date of the trial of this action.  He is right-handed.

21.  As noted above, the issues relating to quantum concern the appropriate awards for (i) pain, suffering and loss of amenities, (ii) pre-trial loss of earnings and (iii) future loss of earnings.

22.  The difference between the parties as to these three items of damages all have a common source, namely the disagreement between the parties’ respective medical experts as to the extent of his injuries caused by the accident.  It is therefore necessary to examine those differences and to determine the extent of the Plaintiff’s injuries as a result of the accident.

The Plaintiff’s treatment

23.  At the time of the accident, the Plaintiff lost consciousness for a short time.  He was taken to the Prince of Wales Hospital Accident and Emergency Department.  Physical examination showed right upper limb weakness and right lower limb weakness with paraesthesia.  There was tenderness over the lower cervical spine and abrasion and tenderness over the right side of the neck.

24.  He was admitted to the Department of Orthopaedics and Traumatology of the Prince of Wales Hospital from 27 December 2003 to 9 January 2004 and received treatment from a neurologist, pain team and neurosurgeon.  He was found to have suffered head and neck injuries consistent with having been hit by a hard object over the left parietal and neck region.  Physical examination showed right upper limb weakness and right lower limb weakness with paraesthesia, as well as right facial numbness.  There was tenderness over the lower cervical spine and abrasion and tenderness over the right side of the neck.  An ultra sound of the brachial plexus showed mild swelling, and an electromyogram showed demyelinative changes.  He was diagnosed to have suffered a brachial plexus injury of the right shoulder and given conservative treatment with physiotherapy.

25.  The Plaintiff was re-admitted to the Prince of Wales Hospital between 25 February 2004 and 11 March 2004 for investigations, followed by referral for physiotherapy treatment until July 2004.  He was further re-admitted between 30 June 2004 and 3 July 2004 and between 28 November 2005 and 2 December 2005.  He attended for out-patient treatment at the Orthopaedic Clinic/Orth-Special Hand Clinic of the Prince of Wales Hospital between March 2004 and April 2006.

26.  He underwent MRI investigations at the Guangdong Province Clinic Medical Hospital on 31 March 2005 and 8 May 2006.

27.  The Plaintiff attended the pain clinic of the Alice Ho Miu Ling Nethersole Hospital.  From May to June 2005, the Plaintiff attended a Comprehensive Outpatient Pain Engagement program at the Alice Ho Miu Ling Nethersole Hospital to learn proper pain coping skills and improve his psychological functioning.  He continued follow up treatment until February 2007.

28.  He received psychiatric treatment at Castle Peak Hospital from September 2004 until June 2007.

The expert medical evidence

29.  There were two joint medical reports for the purposes of the trial.  One was a joint report of two orthopaedic specialists, Dr Au Ka Kau (for the Plaintiff) and Dr Danny Tsoi Chi Wah (for the Defendant), dated 8 August 2006.  The other report was a joint report of two psychiatrists, Dr Peter W.T. Yu (for the Plaintiff) and Dr Benjamin Lai (for the Defendant), dated 31 December 2007.  It was directed that these reports should be adduced in evidence without oral evidence.

30.  The orthopaedic specialists diagnosed the Plaintiff as having (i) generalised pain over the right side of his body, (ii) a brachial plexus injury on the right side, (iii) a prolapsed disc, and (iv) an acoustic neuroma on the left side.  The two experts noted that the Plaintiff developed neck pain, back pain, and numbness and weakness of the right upper and lower limb after the accident.

31.  They noted that the MRI investigation of the brain showed acoustic neuroma and that there were degenerative changes in his cervical spine but no evidence of cord compression.  The MRI of the lumbar spine showed a disc lesion at L3/4 and L4/5.  Dr Tsoi’s opinion was that the degenerative changes of the cervical spine and lumbar spine were pre-existing and bore no relation to the accident.  Dr Au did not offer any contrary view.  Indeed, it was common ground between the experts that the disc lesion in the Plaintiff’s lumbar spine was developmental change and that the disc pathology in his lumbar spine and acoustic neuroma were not related to the accident.

32.  The ultrasound investigation of the brachial plexus showed swelling of the right brachial plexus and the electromyogram showed demyelinative changes.  Drs Au and Tsoi opined that these were objective findings suggesting the Plaintiff suffered from a brachial plexus injury of the right shoulder and they agreed this was consistent with the injury he sustained in the accident.

33.  Drs Au and Tsoi agreed that the brachial plexus injury to the Plaintiff’s right side accounted for his upper right limb sensory and motor deficit.  Dr Tsoi opined that the brachial plexus injury would not cause generalised weakness and impaired sensation of the whole right upper limb and would certainly not cause any neurological problem of the lower limb.  He thought the generalised pain and weakness of the right side of the body was likely due to symptoms magnification, an opinion he considered was supported by a positive Waddell’s sign.

34.  Both Dr Au and Dr Tsoi considered that, orthopaedically, the Plaintiff had reached a stage of maximal medical improvement so that no further treatment was required.  They considered he was not fit to return to his pre-accident employment as a steel binder but would be fit for light and sedentary work such as that of a cashier, operator or messenger.  They agreed on a sick leave period of two years.  In terms of body impairment, Dr Au considered the Plaintiff’s total body impairment to be 34% and his loss of earning capacity to be 45%, whilst Dr Tsoi considered body impairment to be 26% and loss of earning capacity to be 35%.

35.  Turning to the joint expert report of the psychiatric experts, Drs Yu and Lai were agreed that the Plaintiff was suffering from two mental disorders, namely posttraumatic stress disorder (PTSD) and adjustment disorder with depressed mood.  They differed, however, in their respective evaluations of the severity of the Plaintiff’s mental symptoms.

36.  Dr Yu considered the Plaintiff had mild residual symptoms of PTSD, with three symptom clusters, namely (i) persistent re-experiencing of the traumatic event, (ii) persistent evading of things that would bring the event to mind and a numbing of general responsiveness, and (iii) a state of hyper-arousal.  He also opined that the Plaintiff had mild residual symptoms of the adjustment disorder, the predominant manifestation of which was a depressed mood.

37.  For his part, Dr Lai observed evidence of inconsistency in the assessment of the Plaintiff in the form of (i) an absence of underlying physical pathology to explain some of his physical complaints, specifically the pain in the right side of his body and his right leg, (ii) inconsistency in his complaints in the assessment by Drs Yu and Lai compared with the information in earlier medical reports, specifically the medical report in September 2005 noting a significant improvement, the ability to walk in a nearby shopping mall daily, the ability to have sexual relations with his wife and a neutral mood, (iii) inconsistency between the accident and resulting physical pathology with the development of double vision as claimed by the Plaintiff, (iv) inconsistency in the physiology of the Plaintiff’s claim of double vision, (v) inconsistency between his fear of falling objects and his behaviour in actively collecting evidence of industrial malpractice, and (vi) inconsistency between his complaint of depressed mood and the clinical observation.

38.  Dr Yu disagreed with each of these inconsistencies as described by Dr Lai.  He considered the Plaintiff was credible and he did not think there was a strong impression of seeking to dramatise or fabricate.

39.  Both psychiatrists were agreed that the PTSD was the result of the Plaintiff’s exposure to the accident, which was a traumatic event, and that the adjustment disorder was a psychological reaction to the accident and its aftermath.

40.  As to the prognosis for the Plaintiff’s mental condition, Dr Yu expected the PTSD to continue to improve slowly over the next few years but thought there might be little, if any, improvement in the adjustment disorder with depressed mood.  Dr Lai believed the PTSD and adjustment disorder had improved with treatment over the past few years and that he was suffering from residual symptoms, if any.  Dr Lai thought his prognosis was good and expected him to have only minimal residual psychiatric symptoms, if any.

41.  In terms of permanent impairment, Dr Yu opined that the overall impairment was 5%, whilst Dr Lai considered it was in the range of 1% to 3%.  As for loss of earning capacity, Dr Yu considered it was 15%, whilst Dr Lai considered it was 1% to 3%.  Both experts agreed he could not return to his pre-accident employment (in Dr Yu’s view because of the PTSD and in Dr Lai’s view because of his physical disabilities).  Dr Yu considered he could perform manufacturing, clerical or sales work, whilst Dr Lai thought he was mentally capable of returning to work appropriate to his physical abilities.  In terms of sick leave, Dr Yu considered two years appropriate, whilst Dr Lai thought sick leave for about a year was justified by his psychiatric conditions.

Findings as to the Plaintiff’s injuries sustained as a result of the accident

42.  I shall deal firstly with the Plaintiff’s physical injuries.

43.  It is common ground that the Plaintiff suffered a brachial plexus injury on his right side as a result of which he suffers right upper limb sensory and motor deficit as well as neck pain and impaired neck movement.

44.  However, it is also common ground that the Plaintiff’s cervical spine and lumbar spine degenerative changes were pre-existing and not related to the accident.  Similarly, it is common ground that the Plaintiff’s acoustic neuroma, blurred vision, eye pain and loss of hearing were not caused by the accident.

45.  Since Dr Au has not proffered any contrary view, I accept Dr Tsoi’s opinion that the Plaintiff’s brachial plexus injury would not cause generalised weakness and impaired sensation of the whole right upper limb, nor that it would cause any neurological problem of the lower limb.

46.  When Dr Au and Dr Tsoi examined the Plaintiff, they noted that he had right upper limb motor power of grade 1 to 2 on a scale of 1 to 5, where 3 indicates an ability to lift against gravity and 5 is normal.  I see no reason not to regard this as an objective measure of the Plaintiff’s right upper limb weakness.

47.  Although there was a question as to whether the Plaintiff’s neck pain was a result of the aggravation of a pre-existing condition, it appears that the Plaintiff only started complaining of stiffness and neck pain after the accident.  I therefore find that his neck pain and impaired neck movement were therefore a result of the accident.

48.  Although the Plaintiff attended at Court using a walking stick, and was video taped by the Defendant’s investigators using a stick when walking in the street, I do not find that the Plaintiff has suffered any lower limb injury or pain as a result of the accident.  However, it is right to note that the surveillance tape certainly showed the Plaintiff moving in a careful and deliberate manner at a moderate to slow pace, supporting the generally physically tentative condition in which he appeared when he gave evidence at the trial.

49.  As for the Plaintiff’s mental condition, it is common ground that, as a result of the accident, he suffers from PTSD and adjustment disorder with depressed mood.

50.  I have not had the benefit of hearing the experts testify, since it was directed that the medical evidence be adduced without oral evidence.  This has made the resolution of the differences between the experts a somewhat imprecise exercise.  Doing the best I can, however, I am inclined to prefer the view of Dr Lai as regards the severity of the Plaintiff’s psychiatric disorders, notwithstanding the contrary views of Dr Yu.  I do so for two principal reasons.  First, Dr Constance Chan of the Department Psychiatry of the Tuen Mun Hospital noted in April 2005 that the Plaintiff showed significant improvement with titration of medication and psychological intervention and opined that his impairment related to the accident would be expected to be mild and his prognosis optimistic in view of his response.  Secondly, Dr Yu’s own opinion as to the Plaintiff’s prognosis was that he expected the Plaintiff’s PTSD to continue to improve slowly over the next few years.  He opined that two years’ sick leave due to the mental symptoms was appropriate and noted that by December 2005 the mental symptoms had improved significantly.

51.  It therefore follows that I find that the Plaintiff has residual symptoms of his PTSD and adjustment disorder, the prognosis for which is good so that he will have only minimal residual psychiatric symptoms.

52.  Having said that, it should be noted that the symptoms of which the Plaintiff suffered until December 2005 included depressed mood and anxiety with multiple somatic complaints and flashbacks and nightmares of the accident.  He also had anxiety symptoms including nausea, palpitation, shortness of breath and sweating, with intense pain.

Pain, suffering and loss of amenities

53.  Mr Chain submitted that the Plaintiff’s injuries were within the “serious injury” category and invited the Court to award the sum of $460,000, being the bottom end of the range of awards for that category (adjusted for inflation: see Chan Pui Ki v. Leung On [1996] 2 HKLR 401 and Chan Chi Shing v. Tsang Fook Metal Engineering & Anor., CACV 238/1999, unrep., 21.12.99), by way of damages for pain, suffering and loss of amenities.

54.  For his part, Mr Gidwani submitted that the damages under this head should be $350,000 on the basis the injuries are below the lower end of the serious injury category since the Plaintiff had merely suffered a mild injury to his brachial plexus with an onset of mild psychiatric overlay.  He submitted that an award greater than $350,000 would over-compensate the Plaintiff since it might include those impairments, namely his hearing, eye and lumbar spine impairments, which are unrelated to the accident.

55.  I was not referred to any specific cases in support of their competing assessments of damages for pain, suffering and loss of amenities by either Mr Chain or Mr Gidwani.  Mr Chain submitted that, regardless of the differences between the psychiatrists, the Plaintiff’s physical injuries alone were such that his injuries should be assessed to fall at the bottom end of the serious injury category.

56.  The serious injury category was described in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 at p.659 as covering “… those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.”

57.  The Plaintiff was an active man engaged in a highly physical occupation as a steel binder and had worked as such since 1997.  According to his witness statement, and this evidence was not challenged in cross-examination, his health before the accident was good (although there is evidence of a degenerative condition in respect of his cervical spine and lumbar spine, not connected with the accident), he enjoyed working to support his family, he was ambitious and he loved sports.  Mr Chain put it in terms of the Plaintiff having effectively lost the use of his right arm.

58.  In my judgment, and notwithstanding Mr Gidwani’s submissions to the contrary, the Plaintiff’s injuries as I have found them to be are such that I assess his damages for pain, suffering and loss of amenities as being at the bottom end of the serious injury category.  The seriousness of his injuries is also reflected in (i) the relatively extensive treatment he has received, (ii) the relatively lengthy sick leave period it is agreed he should be entitled to, (iii) the limited types of employment for which he is now suited, (iv) the fact that the Plaintiff has suffered both physical and mental illness as a result of the accident, and (v) the Defendant’s medical expert’s assessment of total bodily impairment (viz. 26%).

59.  I note in relation to the latter point that in Chan Chi Shing v. Tsang Fook Metal Engineering & Anor. (supra.), where the plaintiff had suffered a sprained back leading to a prolapsed disc causing mild back pain and numbness, pain and diminished ankle reflex and where total impairment was assessed in the agreed medical report at 15%, the Court of Appeal upheld the judge’s assessment of his injuries as being within the serious injury category.

60.  I therefore award the sum of $460,000 in respect of this head of damages.

Loss of earnings (pre-trial)

61.  Mr Chain submitted that the Plaintiff should be awarded damages for loss of earnings for the full pre-trial period of 54 months at the rate of $18,260 per month.

62.  Mr Gidwani submitted, on the other hand, that the pre-trial loss of earnings claim should only run for a total of 30 months and at the lower rate of $16,660 per month.

63.  There are therefore two questions that arise in this context, namely what rate of earnings should be taken as the basis of the pre-trial loss of earnings and for what period should those earnings be awarded.

64.  As to the rate of the pre-trial loss of earnings, the difference between the parties turned on a very narrow point.  It was agreed that the daily earnings for the Plaintiff before the accident were $830.  The Plaintiff’s calculation of $18,260 was based on a working month of 22 days.  The Defendant’s calculation of $16,600, in contrast, was based on a working month of 20 days.

65.  Mr Gidwani submitted that the Plaintiff had not called any witness to support his case that he could work for 22 days a month had the accident not happened.  He submitted that the Defendant’s figure of 20 days a month was reasonable and realistic, if not in fact too optimistic.

66.  Whilst there was no independent witness as to the number of days the Plaintiff would expect to work had the accident not occurred, the Plaintiff’s own evidence was that he worked on average 26 days a month and this was not challenged in cross-examination.  Moreover, in a document apparently submitted by the 2^nd Defendant in respect of the Plaintiff’s Employees’ Compensation claim, the average monthly earnings for the 12 months preceding the accident is stated to be $18,260, i.e. the Plaintiff’s figure based on 22 days’ work each month.  This notice was apparently submitted subsequently to the original Form 2 notice in respect of the accident, which states the Plaintiff’s daily wage as $830 and that he had an average of 24 working days a month.

67.  In the circumstances, the evidence supports the Plaintiff’s calculation of his pre-accident monthly earnings of $18,260 based on 22 work days a month.  Whilst this does not necessarily lead to the conclusion that the Plaintiff would have continued to work that number of days per month in the period after the accident and in the future, there is no evidence to suggest he would not have worked that number of days.  I therefore conclude that the figure to be used for the calculation of pre-trial loss of earnings (and as the starting point for the future loss of earnings claim) should be $18,260.

68.  As to the period for which the pre-trial loss of earnings should be awarded, the difference between the parties is relatively narrow.  Mr Chain submits this rate of pre-trial loss should be awarded for the whole period from the date of the accident to date since it is common ground between the parties that the Plaintiff cannot resume his pre-accident employment and the Plaintiff has not been able to find any work at all.

69.  Mr Gidwani submitted that a period of 30 months is appropriate and that this was in line with the medical evidence.  On this basis, the Plaintiff would be expected to have found work after June 2006.

70.  In my judgment, the mere fact the Plaintiff has not yet been able to find work does not require that I award pre-trial loss of earnings on the basis of a total loss of earnings for that whole period.  The evidence of the efforts made by the Plaintiff to find work was not impressive.  It would appear that all the Plaintiff did was to register with the Labour Department in February 2007.  He said the Labour Department told him that there were no job offers and in the period since he has been registered he has not even received any offers of interviews.

71.  I do not think this is sufficient evidence to support the Plaintiff’s claim for pre-trial loss of earnings for the whole period from the date of the accident to the date of trial.  The medical evidence supports a period of sick leave for two years in respect of his physical injuries and between one and two years for his mental condition.  The fact the Plaintiff went to the Labour Department to register in February 2007 suggests he was ready, willing and able to work by then.  Assuming all reasonable steps were taken by the Plaintiff to secure some form of employment which the medical experts have all agreed he is fit for, namely light and sedentary work such as that of a cashier, operator or messenger, I see no reason why the Plaintiff should not have found some form of suitable employment by June 2007, i.e. 42 months after the accident.

72.  I therefore propose to award pre-trial loss of earnings at the rate of $18,260 for the period of 42 months and at a reduced rate for the remaining 12 months of the pre-trial period.

73.  As to the amount which the parties’ respectively contended the Plaintiff would be able to earn in suitable post-accident employment, the Plaintiff’s case was that he could earn about $6,000 per month, whilst the Defendant’s case was that he could earn about $10,000 per month.

74.  There was no specific evidence to support Mr Gidwani’s suggested figure of $10,000.  He submitted that this was an appropriate figure because of the Plaintiff’s educational level (he completed secondary school) and business experience in the textile industry (he had operated a processing business on a sub-contracting basis).  However, in the absence of any direct evidence to support it, I reject this figure as the appropriate notional earnings figure.

75.  The only evidence of wages for the types of employment for which it was agreed the Plaintiff was now suitable were figures in the Quarterly Report of Wage and Payroll Statistics dated March 2008.  There, the average monthly salary for a male general worker in the category of miscellaneous non-production workers is stated to be $8,252.

76.  For his part, Mr Chain submitted that this figure was merely an average made up of a number of different types of industries and occupations.  He pointed to the salaries for general workers in the garment industry ($7,619), printing, publishing and allied industries ($7,506), import/export of foodstuffs industry ($7,753), Chinese restaurant industry ($6,582), fast food shop industry ($5,851), all of which were lower than the average.  He relied on the salary figures for a messenger in the wholesale industry ($7,950) and in the import/export of foodstuffs industry ($8,012) as also showing a generally lower level than the overall average of $8,252.

77.  It is self-evident that it is in the nature of averages that there will be some categories above the average figure and some below.  I am not persuaded that there is any particular reason to select the occupations which are reflected by the lower range of figures making up the average.  The medical experts were opining in broad terms as to the type of work that the Plaintiff would be able to perform.  They were not suggesting specific jobs and nothing else.  For these reasons, I propose to take the average figure of $8,252 and adjust it downwards to $8,000 as a reflection of what I find the Plaintiff ought to have been able to earn in the balance of the pre-trial loss of earnings period and also in the post-trial period.  I recognise that this is a rather imprecise manner of arriving at the appropriate figure but (i) there is no alternative since a figure must be arrived at somehow, and (ii) I was not presented with any better evidence either by the Plaintiff as to his efforts made to secure employment or by the Defendant as to available employment generally.  Ideally, it seems to me, this sort of evidence would have been helpful in order to assist me in arriving at my finding on a firmer and more reliable basis.

78.  Applying the figure of $8,000 as the Plaintiff’s notional earnings figure, the rate of loss for the balance of the pre-trial loss of earnings period of 12 months is $10,260 (i.e. $18,260 - $8,000).

79.  Mr Gidwani also submitted that the pre-existing conditions or those unrelated to the accident of which the Plaintiff now suffers, namely his eye, ear and lower limb problems, are such that they would have interfered with the Plaintiff’s ability to carry on his pre-accident employment.  I shall return to this point in relation to future loss of earnings, but I do not think there is a sufficient evidential basis to conclude that these conditions would have interfered with the Plaintiff’s ability to work as a steel binder before the end of the 42 month period for which I consider the pre-trial loss of earnings should be awarded at the full rate.

80.  The award under this head will therefore be (i) $18,260 x 42 months, being $766,920 and (ii) $10,260 x 12 months, being $123,120.  The aggregate of these two amounts is $890,040, to which an uplift of 5% in respect of MPF of $44,502 must be added.  The total award of pre-trial loss of earnings is therefore $934,542.

Future loss of earnings

81.  The difference between the parties here was as to the notional earnings rate and the multiplier to be applied to the resulting multiplicand.

82.  As to the multiplicand, for the reasons set out above in respect of the balance of the pre-trial loss of earnings period, I find that the Plaintiff should notionally be able to earn $8,000 per month.  Since his pre-accident earnings were $18,260 per month, the notional post-trial loss of earnings are the difference between these two figures, namely $10,260.

83.  Mr Gidwani submitted that a multiplier of 5 was appropriate, whilst Mr Chain submitted a multiplier of 7.5 was appropriate.

84.  Mr Gidwani did not cite any authorities to support the multiplier of 5.  He submitted that the Plaintiff’s pre-existing conditions were such that he would not have been able to continue to work until retirement as a steel binder.    He invited me to award post-trial loss of earnings on the basis of a multiplier of 5 but to award in addition a lump sum figure of $100,000 by way of loss of earning capacity to reflect the disadvantage in which the Plaintiff would find himself in the labour market.  He submitted that this would be appropriate since it would be difficult to distinguish the effect of the impairments which were genuinely caused by the accident and the effect of the Plaintiff’s other disabilities, namely his hearing, eye and lumbar spine impairments.

85.  There is some attraction in Mr Gidwani’s submission but I have come to the conclusion that the multiplier of 7.5 suggested by Mr Chain is the right multiplier to apply in any event.

86.  Mr Chain cited authorities to support his choice of multiplier of 7.5, namely:-

(1) Chan Yu Chao v. Fong On Construction [2002] HKLRD (Yrbk) 400: a formworker aged 45 at trial, multiplier 10;

(2) Ho Sik Tun v. Lau Kin Sun [2001] HKLRD (Yrbk) 429: a driller aged 49 at trial, multiplier 9;

(3) Chan Kai Wing v. Leung Fat Kee Engineering Factory Co. Ltd. [2000] HKLRD (Yrbk) 380: mechanic aged 48 at trial, multiplier 8; and

(4) Yeung Kwok Wo v. Hoi Hing Steel Fixing Works Co., HCPI 136/2004, unrep., 13.11.06: steel binder aged 56 at trial, multiplier 7.

87.  Mr Chain submitted that his proposed multiplier of 7.5 already reflected a reduction from a range of 8 to 10 which would be appropriate for a man of the Plaintiff’s age, namely 47.

88.  I agree with Mr Chain’s submission in this regard.  His proposed multiplier of 7.5 is lower than might have been awarded and the discount so reflected effectively neutralises Mr Gidwani’s contention that the Plaintiff’s other disabilities, not caused by the accident, would have impaired his ability to earn in the future.

89.  Applying the multiplier of 7.5 to the notional earnings of $10,260, the award of future loss of earnings will therefore be $10,260 x 12 x 7.5, namely $923,400.  To this figure, an uplift of 5% in respect of MPF of $46,170 must be added so that the total award of future loss of earnings is therefore $969,570.

Loss of earning capacity

90.  As noted above, Mr Gidwani submitted that an award under this head should be made in conjunction with an award of future loss of earnings based on a multiplier of 5.  Mr Chain did not ask for an award of damages for loss of earning capacity if the multiplier of 7.5 he proposed for future loss of earnings was adopted.  Since I have determined that 7.5 is the appropriate multiplier, it is unnecessary to make an award under this head.

Special damages

91.  As noted above, these were agreed by the parties in the sum of $30,000.

Summary of awards

92.  To summarise, I make the following awards of damages in favour of the Plaintiff:-

(1)  For pain suffering and loss of amenities	$460,000
(2)  Pre-trial loss of earnings (including MPF)	$934,542
(3)  Future loss of earnings (including MPF)	$969,570
(4)  Special daages	$  30,000
Total:	$2,394,112

93.  Against this total sum, it is agreed that the Plaintiff must give credit for the sum of $398,468 already received.  This produces an adjusted total figure of $1,995,644.

Interest

94.  There will be an award of interest on damages for PSLA at 2% from the date of the writ (being 11 November 2006) to the date of judgment.

95.  As for the damages for pre-trial loss of earnings (excluding the MPF element) and other special damages, interest will be awarded on these damages at half the judgment rate from the date of the accident until the date of judgment.

Costs

96.  I make a costs order nisi that the Defendant bear the Plaintiff’s costs of this action to be taxed, if not agreed.  The Plaintiff’s own costs will be taxed in accordance with the Legal Aid Regulations.